Vincenzo Iaia
There is a fear, especially among technophobes, that artificial intelligence (AI) may soon replace, among various jobs, those closely related to art, culture, and science. The various decisions in the United States (as reported here and here) follow a narrative based on the anthropocentric approach to copyright law and, through it, create barriers against so-called algorithmic productions. A different viewpoint comes from the Beijing Internet Court, which, in a decision at the end of November 2023 (reported here in the original language), introduces the idea that AI can actually help (rather than replace) professions closely related to art, culture, and science. It does so through the recognition of copyright in relation to an image generated through the well-known AI-system Stable Diffusion.
The image in question had been published by the defendant in his blog without the author’ authorization and by removing the watermark. The author then successfully filed a lawsuit for violation of his exclusive right, obtaining compensation of $76.00. Beyond the modest amount awarded, it is interesting to note that the Chinese judge recognized the possibility that an individual can express their creativity through the so-called prompts, the instructions given to the algorithm to generate images. Intellectual contribution therefore lies in the selection of instructions for the software, in the modification of parameters to make the output more in line with one’s desires, as well as in the selection of the final output, which also coincides with the arbitrary decision to stop the production process.
From an evidentiary standpoint, the plaintiff not only attached the initial prompt, “ultra-photorealistic: 1.3), extremely high quality high detail RAW color photo, in locations, Japan idol, highly detailed symmetrical attractive face, angular symmetrical face, perfect skin, skin pores, dreamy black eyes, reddish-brown plaits hairs, uniform, long legs, thigh-highs, soft focus, (film grain, vivid colors, Film emulation, kodak gold portra 100, 35mm, canon50 f1,2), Lens Flare, Golden Hour, HD, Cinematic, Beautiful Dynamic Lighting”, but also included 120 prompts to demonstrate the post-editing work after the initial proposal of Stable Diffusion.
The decision, although subject to appeal, offers an interesting perspective for framing the relationship between machines and humans, no longer necessarily represented in an antagonistic position, but rather in an instrumental bond of the former with respect to the latter. It is not unlikely that similar reasonings will be adopted and adapted in other jurisdictions outside China, including the countries of the European Union. The proof of sufficient human intellectual contribution will be the central issue in deciding on which side of the ridge the litigations concerning prompt-based creativity will be resolved.
